The Senate needs filibuster reform but not this way

December 4, 2012 11:40 amUpdated: December 4, 2012 12:12 pm

In the spring of 2005, Senate Democrats were in an uproar. Republicans, infuriated over what they perceived as the Democratic minority’s abuses of the filibuster to block judicial nominees, were threatening to deploy the nuclear option: changing the filibuster rules by a simple majority vote, rather than requiring the 67 votes ordinarily required for a rules change.

“The current Senate majority intends to do what the majority in the Senate has often done — use its constitutional authority … to reform Senate procedure by a simple majority vote,” Majority Whip Mitch McConnell, R-Ky., said at the time. If Republicans resorted to such a drastic move, warned then-Minority Leader Harry M. Reid, D-Nev., “the majority should not expect to receive cooperation from the minority in the conduct of Senate business.”

In the end, the explosion was defused, with an agreement brokered by the Gang of 14 not to filibuster judges except in extraordinary circumstances.

Now, the tables are turned. Democrats are in the majority and chafing at Republican abuse of the filibuster. What was once a sparingly used tactic has become almost routine. The number of cloture motions filed to end debate, a rough measure of the number of filibusters, rose from 68 in the 109th Congress to 139 in the 110th and 110 in the current, 112th. And Mr. Reid, now majority leader, is threatening, when the new Congress convenes next year, to deploy the nuclear option he once decried. Mr. McConnell, now minority leader, took preemptively to the Senate floor last week to denounce “this majoritarian power grab” he once described as routine. When it comes to the filibuster, consistency has never been either party’s strong point.

As we said seven years ago, the filibuster has been abused and is in need of reform. As we also said, using the nuclear option is the wrong way to achieve those changes. The changes to the filibuster Mr. Reid is contemplating are rather restrained; if anything, they would go not far enough. These include eliminating the minority’s ability to filibuster the motion to proceed to legislation.

Republicans argue this seemingly minor reform would infringe on their rights because it would reduce their leverage to be guaranteed the right to offer amendments.

“If this change occurred, the minority will no longer have any ability to ensure that it, and those whom it represents, have a meaningful voice in the legislative process,” Mr. McConnell warned.

This argument seems overblown; after all, the minority would retain the right to filibuster the underlying legislation unless their amendments were considered.

Mr. McConnell — that is, Mr. McConnell of 2012 — is on stronger ground when he warns about setting a dangerous “precedent for breaking the rules to change the rules that our Democratic colleagues will have to endure when they are next in the minority.”

Before going nuclear, Mr. Reid ought to try, again, to negotiate. Surely the two leaders could craft a set of bipartisan rules changes that would ease gridlock while being tolerable to whatever side, in a future Congress, finds itself in the minority.